Marci A. Hamilton

Introduction: Fundamentalism, Politics, Law

There was a spate of academic literature in the 1980s and 1990s that examined the rise of religious fundamentalism in the United States. Much of the literature was a reaction to the Moral Majority’s entrance into the political sphere in 1979, which energized a wave of political movements, including those that were anti-abortion rights, anti-evolution, and anti-secularism. The focus of the scholarship at that time was on the emergence and growing influence of the largely fundamentalist Protestant-led Christian Right.

A Response to Professor Benkler

Professor Hamilton explores the constitutional complexity uncovered by Professor Benkler in his piece, Constitutional Bounds of Database Protection: The Role of Judicial Review in the Creation and Definition of Private Rights in Information. Specifically, Professor Hamilton highlights that our democratic structure is characterized by representation rather than self-rule. In doing so, she refocuses the role of information in the political process and highlights that different types of information require different levels of access. Professor Hamiltons analysis further illustrates how an imprecise use of terminology may lead to incorrect conclusions regarding information jurisprudence. Through her more refined lens, Professor Hamilton reconsiders the proposed database legislation under the Copyright and Commerce Clauses and under First Amendment doctrine. While critiquing Benklers underdeveloped theoretical and doctrinal approaches, she concludes that he does correctly find the Collections of Information Antipiracy bill constitutionally deficient; however, he is incorrect in finding the Consumer and Investor Access to Information bill constitutionally sound. Indeed, Professor Hamiltons response emphasizes that a broad-brush approach cannot draw the fundamental fine line between constitutionally acceptable and unacceptable regulations of information.